If DNA Test Reveals Husband Is Not Child's Father, He Need Not Implead Wife's Paramour In Proceedings Under Indian Divorce Act: Madras HC

The Madras High court recently observed that not impleading wife's alleged paramour as a co-respondent is not fatal to a plea for divorce on the ground of adultery, when the DNA test already proves that the husband is not the father of the child. Justice P Velmurugan and Justice KK Ramakrishnan observed that once it is proved that the wife was leading an adulterous life, the husband would be entitled to divorce on that ground. “even though the marriage is admitted and there is no direct physical evidence for adultery, but however the expert's opinion and medical evidence clearly prove that after the marriage, the respondent [wife] had illegal intimacy with another man. Further the Family Court also finds that DNA Test itself shows that the appellant [husband] is not the biological father of the child but in the interest of the child, the Family Court dismissed the divorce petition. Once the appellant proved that the respondent/wife was leading an adulterous life, the appellant is entitled to get divorce on that ground,” the court observed. The court was hearing an appeal filed by the husband against the Family Court's refusal to grant him divorce on the ground of adultery and cruelty. The husband had said that the couple got married on October 18,2012 and lived together as husband and wife. Thereafter, the wife left the matrimonial home without any information and made no contact with the husband. The husband informed the court that the wife's parents had given an assurance that they would bring the wife to the matrimonial home but when they failed to do so, the husband went to Kerala to bring the wife back to the matrimonial home. He submitted that the wife voluntarily came to the husband's house and lived with him and later informed him of her pregnancy. After the child was born, the husband's sister informed him that the wife had sexual intercourse with another man while she was living with her parents at Kerala. The wife, however, contented that the petition was filed since she had failed to arrange the jewels demanded by the husband and because of this the husband refused to accept her for marital life. She also denied the allegation of adultery and said that since there was access between the husband and wife, there was a presumption that the child was born to the wife through the husband. She also argued that even though the husband had made allegations of adultery, the name and particulars of the alleged paramour was not given. The court noted that the medical evidence and the expert advice clearly showed that the child was not born to the husband. The court also noted that the wife had not disputed the DNA test or the expert report on the DNA test. Thus, the court noted that even though there was no direct evidence, the expert advise would indicate that the wife had illegal intimacy with another man. The court also noted that the husband was not aware of the paramour but only knew that he belonged to Kerala. The court thus noted that when the evidence were not disputed, the mere fact that there was access between the husband and wide will not be helpful. The court added that in such circumstances, the mere non impleading of the paramour will not be fatal to the case. “Once Ex.P6 is not challenged and the same was also proved by examining P.W.3, mere the access between the appellant and respondent will not be helpful and Section 112 of the Indian Divorce Act is not applicable to the present case on hand. Under the above said circumstances, mere non impleading of adulterer as co-respondent is not fatal to the case of the appellant,” the court noted. The court thus allowed the appeal and set aside the order of the Family judge thus dissolving the marriage between the parties. Counsel for the Appellant: Mr.M.Mohamed Ibram Saibu Counsel for the Respondents: Mr.M.Thirunavukkarasu Citation: 2024 LiveLaw (Mad) 365 Case Title: ABC v XYZ Case No: C.M.A(MD)No.1045 of 2018Click here to read/download the judgment

If DNA Test Reveals Husband Is Not Child's Father, He Need Not Implead Wife's Paramour In Proceedings Under Indian Divorce Act: Madras HC

Upasana Sajeev

Tags